Mediation Act 2023 Does Not Confer Power On Courts To Mandate Mediation Without Mutual Consent Of Parties: Bombay High Court

The Bombay High Court has held that the Mediation Act, 2023, does not empower courts to compel parties to undergo mediation without their mutual consent. The Court clarified that mediation under the statutory framework is consensual in nature and cannot be imposed unilaterally.Justice Rajesh S. Patil was hearing an interim application in a suit for specific performance of a family arrangement, where the question arose whether parties could be referred to mediation despite one party's unwillingness. The Plaintiff contended that if the Court is of the view that the matter ought to be referred to mediation, then the consent of Defendant No. 1 would not be necessary.The Court examined the statutory scheme of mediation, including Section 89 of the CPC, the Mediation Act, 2023, and the legislative history of pre-litigation mediation. Referring to Section 5 of the Mediation Act (though not yet notified), the Court observed that the legislature consciously used the expression “may voluntarily and with mutual consent,” indicating that mediation is intended to be consensual.“Even though Section 5 of Mediation Act, 2023 has not been notified yet, I am referring to the said section, only to establish the legislative intent behind it while passing the Mediation Act, 2023… legislature in its wisdom wanted mediation to be kept as a voluntary act with consent of the parties and not something which is mandatory in nature,” the Court observed. The Court also contrasted this with Section 12-A of the Commercial Courts Act, where pre-institution mediation is made mandatory in certain cases, noting that no such compulsion exists for ordinary civil suits.Relying on precedent, including the Supreme Court's observation that mediation cannot be forced upon unwilling parties, the Court held that in the absence of consent, referral to mediation would be inappropriate unless there exists a clear possibility of settlement.The Court noted that multiple prior mediation attempts had failed in the case. It further observed that the case at hand does not involve a situation where a party is close to accepting the offer given by the other party. Hence, while concluding that the Mediation Act, 2023 does not provide for any mandatory mediation, the Court concluded that there does not exist any possibility of settlement through mediation between the parties. Accordingly, the High Court rejected the request to refer the matter to mediation.Case Title: Babasaheb Neelkanth Kalyani vs. Sugandha Hiremath & Ors. [Interim Application No. 5241 of 2025 in Suit No. 250 of 2023]Citation: 2026 LiveLaw (Bom) 249Click Here To Read/Download Order

Mediation Act 2023 Does Not Confer Power On Courts To Mandate Mediation Without Mutual Consent Of Parties: Bombay High Court

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Mediation Act 2023 Does Not Confer Power On Courts To Mandate Mediation Without Mutual Consent Of Parties: Bombay High Court

Saksham Vaishya

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